Protecting the work of reporters

Published: Thursday, July 25, 2013 at 03:42 PM.

Still, they can’t impede an overzealous attorney general determined to get around them. Being a matter of executive discretion, they also can be discarded at will.

A stronger safeguard would be a federal law to shield journalists from prosecutorial demands — following the practice of 49 states. The Justice Department would then be legally bound to respect the legitimate rights of the press. The administration endorsed this concept in 2009, and Holder reiterated that support this month.

A shield law should at least limit forced disclosures to genuinely harmful leaks that can’t be traced without the testimony of the journalist — and then only if the harm exceeds the value of public knowledge. At most, such demands should be a last resort. Most news media, however, would prefer absolute immunity for such requests. Reporters should not be punished for doing their jobs.

It’s the job of the press to ferret out secrets, which often are essential to give citizens an accurate understanding of what is being done in their name. If the government can’t prevent leaks, it shouldn’t impose on journalists to make up for its failure.

The Justice Department has taken a big step in the right direction. Congress needs to go further.

One of the ways in which news organizations serve the public is by disclosing facts the government would prefer to hide. Leaks from insiders are a crucial way to let the people know what their leaders are doing.

But sometimes the news media’s search for information collides with the government’s desire to keep secrets — to avoid embarrassment, to safeguard what it sees as highly sensitive material or simply to control the public narrative. When that happens, journalists often wind up in the cross hairs of prosecutors — which is bad for the journalists and often bad for the citizenry.

Lately this phenomenon has been proliferating. In May, Americans learned that the Justice Department had secretly seized phone records from The Associated Press in an investigation of leaks about an airliner bomb plot in Yemen. Justice also got a search warrant for emails sent by a Fox News reporter over a leak about North Korea.

Last week, a federal appeals court panel ruled that a reporter for The New York Times must testify about his sources for his account, published in his book, of a CIA operation targeting Iran’s nuclear program. A dissenting judge said the ruling “severely impinges on the press and the free flow of information in our society.”

But there is a ray of light amid the gloom. After the AP subpoena surfaced, President Barack Obama ordered the Justice Department to review its policies on going after information from journalists. Now, in response, Attorney General Eric Holder has announced new guidelines that would appreciably curtail the power of prosecutors in such cases.

The new policy creates a presumption that prosecutors will notify news organization about demands for records. The sole exception comes where they can show that giving notice would jeopardize an investigation. “Only the rare case,” it says, would “justify a delayed notification.” It also narrows the circumstances in which a search warrant can be sought — and requires the attorney general to approve such requests.

Changes like these offer some hope. David Anderson, a law professor at the University of Texas at Austin, told Reuters the changes would make a “substantial difference.”

Still, they can’t impede an overzealous attorney general determined to get around them. Being a matter of executive discretion, they also can be discarded at will.

A stronger safeguard would be a federal law to shield journalists from prosecutorial demands — following the practice of 49 states. The Justice Department would then be legally bound to respect the legitimate rights of the press. The administration endorsed this concept in 2009, and Holder reiterated that support this month.

A shield law should at least limit forced disclosures to genuinely harmful leaks that can’t be traced without the testimony of the journalist — and then only if the harm exceeds the value of public knowledge. At most, such demands should be a last resort. Most news media, however, would prefer absolute immunity for such requests. Reporters should not be punished for doing their jobs.

It’s the job of the press to ferret out secrets, which often are essential to give citizens an accurate understanding of what is being done in their name. If the government can’t prevent leaks, it shouldn’t impose on journalists to make up for its failure.

The Justice Department has taken a big step in the right direction. Congress needs to go further.